7.06.2005

What to Do About Karl Rove

Should Karl Rove face criminal prosecution if he did indeed leak the name of a CIA agent?
Do we, as Americans, demand integrity, ethics and adherence to the rule of law from every one of our government officials, or do we permit party affiliation to mitigate our decisions to execute punitive actions against a given official?

I bring Rove up here simply because he happens to be the latest target of an investigation. The “good ol boys (and girls)” clubs are in full force on both sides of the aisle, with both parties seeking to stifle unfriendly, damning or incriminating evidence and/or witnesses.

Is it appropriate for other government officials to “intervene,” “obstruct,” or in any other way hinder (or enhance) the discovery process of a prosecutor as he/she seeks to determine whether there has been a violation of statute?

Before you make a decision on this matter, I’d like you to stop a moment, strip yourself of the partisan biases you may have, and consider this issue in terms of what’s best for America as a whole. Examine this issue independently of any past or present comparative analysis, consider the ramifications of your answer for the country fifty years from now, and then draw your conclusion.

Yes, I DO recognize that prosecutorial partisanship is also something that needs to be considered, but lets address one issue at a time, shall we?

We’ll get to the methods in which we can protect against unfair prosecution once we’ve established what is best for America concerning the first issue.


From: Capitol Hill Blue
White House Scrambles to Stop Criminal Indictment of Rove
By DOUG THOMPSON
Publisher, Capitol Hill Blue
Jul 6, 2005, 05:55

The Bush Administration is scrambling behind the scenes to stop a criminal indictment against Presidential advisor Karl Rove for disclosing classified information to reporters in an attempt to discredit a White House critic.

Time Magazine emails turned over to a grand jury show Rove leaked CIA Operative Valerie Plame’s name to journalists after her husband, Ambassador Joseph Wilson, went public with claims the Bush Administration knowing used false information to justify the invasion of Iraq. Plame, until the disclosure, worked as a covert operative for the intelligence agency.

“Some government officials have noted to Time in interviews... that Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction,” Time reporter Matthew Cooper wrote in the magazine in July, 2003.

Emails recently turned over to a federal grand jury investigating the leak show Cooper told his editors that Rove was the source of the information. In addition, Rove attorney Karl Luskin confirms that Cooper interviewed Rove for the article but claims that his client “never knowingly disclosed classified information.”

However, a producer for MSNBC’s Hardball program testified before the grand jury that in July, 2003, Rove called the show’s host, Chris Matthews, and said Plame was “fair game.”

As a top White House aide, Rove has "code level" clearance on security matters and would easily have had access to Plame's status at the CIA. White House sources say he requested additional information on both Plame and Wilson before talking to reporters.

If Rove knowingly disclosed classified information he could face federal felony indictments. Sources within the investigation say special prosecutor Patrick Fitzgerald is pursuing such an indictment against Rove but that the White House is pressuring the Justice Department to put the brakes on such a move.

“It’s a power game,” says one Justice Department attorney familiar with the investigation. “The White House is very, very worried that this will come back down on Rove and them.”

Rove has long been suspected as the leak of Plame’s name which first appeared in conservative commentator Robert Novak’s column in July 2003. Novak has reportedly cut a deal with the special prosecutor to avoid jail time but two other reporters who also reported Plame’s name – Cooper and New York Times reporter Judith Miller – could be jailed for refusing to testify before the grand jury.

MSBC political analyst Lawrence O’Donnell, appearing on the syndicated McLaughlin Group talk show, also outed Rove as the source last Friday, saying he has two sources that confirm Rove masterminded the leak.

Bill Israel, a former reporter who teaches journalism at the University of Massachusetts and who taught with Rove at the University at Texas, says Rove could have easily set up the Plame affair.

“Rove once described himself as a die-hard Nixonite; he is, like the former president, both student and master of plausible deniability,” Israel says. “Consequently, when former U.S. Ambassador Joseph Wilson challenged President Bush’s embrace of the British notion that Saddam Hussein imported uranium from Niger to produce nuclear weapons, retaliation by Rove was never in doubt.”

7.05.2005



This picture was snapped in San Francisco, California.

Do we, as fellow Americans, regardless of the political beliefs we each may hold, actually find this to be humorous?

Are we teaching our children through messages like this that it is acceptable to harm those who don’t agree with you?

Are we breeding a nation of bullies who will kill those they see as different from themselves?

Is this something one would be able to explain to their children without leaving the impression that, so long as it's meant "as a joke," killing other Americans is okay?

There is something very sinister in espousing the idea of “hunting” a fellow American who happens to share a different political and/or social ideology.

I do not find this humorous in the least and I suspect the vast majority of true, patriotic Americans wouldn’t, either, regardless of their political ideology.

Are we willing to allow a contingent of barbarians to usurp our moral and ethical standards for the sake of a joke?

I can only wonder what the creators of this “license” would think if the words targeted them and their belief system.

We, as Americans, should be supporting each other and utilizing our collective expertise from all areas of thought and experience, seeking transparency and the truth from our government and probing in-depth and extensively for the correct solutions to complex issues and problems facing us in the 21st century.

Instead, we incite hatred and fuel distrust when we use symbols such as this.

Would a person who could be somehow identified as "liberal" (political support clothing, pins, bumper stickers, etc) consider this an imminent threat to their safety? Could a competent attorney or a zealous prosecutor then make a legitimate case for assault?

Would a reasonable and prudent person consider something like this a hate crime?

Do statements like this withstand the moral and ethical standards we've established for Americans?

Issues like this one are why I've created Bridging The Divide.

Who will step onto the bridge to discuss this?

Scarce Resources Will Force Every Nation's Hand

Does Steven Lagavulin deserve a a tin foil hat, or could we really be facing what Robert Kaplan calls The Coming Anarchy as nations prepare for war in order to control the remaining oil on planet earth?

The Most Important Thing You Don't Know About "Peak Oil"
By Steven Lagavulin
March 16, 2005

In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.

"When nothing happens for a long time, people begin to assume that nothing ever happens. But, sooner or later, something always happens." -- Steven Lagavulin

There's an aspect to the concept of "Peak Oil" which I don't believe is sufficiently grasped by people following the subject. It's the understanding that the most dangerous aspect we face is not really the state of the resource itself--the actual "Peak" dates or depletion rates, or any of the physical realities of oil supply/demand--but rather the reaction in the oil markets upon realization that the issue no longer even important.

For instance, a few days ago I referenced the article GlobalCorp, because I felt Michael C. Ruppert did a fantastic job 'connecting the dots' of world/political events occurring over just the past few months. What he showed is that, regardless of whether Peak Oil has any reality to it or not, what is important now is that the powers of the world are absolutely steering the course of the planet by this star. As such, the events now destined to unfold over just the next year or so are acquiring a momentum of their own, setting us on an intractable course of global conflict and warfare. This is the reality, as I see it, of what is happening right now, regardless of when any theoretical "Peak Year" may have been reached.

Should the oil markets themselves begin to 'connect these dots', then all our lives are going to be impacted violently and immediately. The commodity traders for various interested firms live solely by anticipating conditions and events, not by debating them and verifying them. The old mantra is, you "buy the rumor, sell the news". This is the reason you'll never see "Peak Oil" covered by a respected media outlet. Because as soon as it is recognized that for all practical purposes the situation is already upon us, then a fast and vicious "resource grab" will be initiated. The price of oil in the markets will begin to rise dramatically. This will initiate a circular hedging / hording mentality in large end-users, governments, and multi-nationals. This will then have a myriad of devastating effects, but all average Joe Consumer is going to notice is that the price at the pump will experience a brief and dramatic blip upward, gas lines will form for a short time at the corner-stations, and then suddenly the corner gas-stations will go dry altogether...perhaps getting a few sporadic deliveries, but more likely simply for good. Gasoline will not be available to individual drivers, as precedence is given to heating oil, critical government and commercial uses, public transportation, transport of food and goods, etc. How the situation unfolds after that you can imagine just as well as I....

If this scenario sounds over-dramatic, keep in mind that what I'm talking about is a dawning recognition of something that many analysts have already come to realize: that the "oil grab" is in fact already on, that it's not a temporary 'bottleneck' or passing 'shock', and that the losers in this game will not survive. A global game of 'blind man's bluff' is underway, with all the players pleading ignorance of the issue for as long as possible so they can get their pieces in place...all the while anxiously watching for the first itchy-trigger finger that's going to set the whole thing off.

This is the reason I highlighted Michael Ruppert's last article. I believe that just as he is stating, the debate over "Peak Oil" itself is already over. It no longer matters whether it is proven or disproven, because there isn't time left to do either. Events in the world are revealing to us the only truth that matters: that a desperate resource war is emergent, one that will not be won by trade sanctions, blustering, or corporate bargaining. This is the only issue which should now be under scrutiny by those who strive to stay "ahead of the curve". No one questions why the U.S. is occupying the Middle-East: the Administration is there for the oil. But the true gravity of the situation is only scarcely beginning to come to light. The 'markets' have already accepted the long-term "bull market" in oil prices due to increasing demand. What they don't accept yet (or understand) is the mounting "supply" problem. When this begins to dawn on them, and it could absolutely happen as quickly as within the next few months, then seemingly overnight the world will start to come apart at the seams.

Keep in mind that we're not talking about the acceptance of oil depletion among the 'general public'; the individuals comprising 'the oil markets' are people who follow the industry intimately, and who know all the latest news and rumors. They know about (quote/unquote) "Peak Oil". What they have not quite done is to connect all the dots....
The world powers are positioning themselves for war. The war is over who can take the most oil. If you don't recognize this, then I urge you to read over Ruppert's article and get a sense for the types of events and stories which form the "dots" he has been connecting. Then begin paying close attention to world news (not "politics", but real events). Begin to discern what the various strategic actions being taken by the countries of the world indicate. Perhaps I am wrong. Maybe I've misread the situation. Verify everything for yourself.

I also want to very sincerely relate that I am not saying any of this to stir up fear or anxiety in anyone. In truth, nothing about the future can be known with certainty. What I am trying to do is to communicate my own recognition that the time for action is now upon us. We can no longer debate who's right and who's wrong. We can no longer hope for what the next election might bring. We can't assume that somehow a 'gradual transition' will be effected, because it is never going to happen that way. Certainly there will be efforts among the global powers to calm the markets in various ways...perhaps some of these will ameliorate matters. But ultimately, in our own lives, just as on the world stage, whomever does not act now will soon find they have already lost the game.

So what action should be taken? What can anyone do to confront the course of events? Sadly, I don't have the answers. But I am trying to work things out. I believe that the only hope of changing things is by building a consensus among people. This needs to happen very quickly, and it will only happen when people are no longer content to just grumble about things, comfortable in the assumption that nothing is going to happen...at least, not anytime soon...and certainly not today....

Also, those who secretly long for the coming collapse will be in for a shock. The initial oil shortage, when it does come, will certainly be a serious inconvenience, but the events which proceed after that are going to humble us all to the core.

Admittedly, I don't believe that any one of us can voluntarily change events of this magnitude...but I do think we have an obligation to live as though we can.

Filibuster: Pro & Con

As promised, here are the arguments from progressives and conservatives for and against keeping the filibuster.


Conservative Argument For Allowing Filibuster
Site—Townhall
The filibuster
George Will (archive)
March 20, 2005

WASHINGTON -- With Republicans inclined to change Senate rules to make filibusters of judicial nominees impossible, Democrats have recklessly given Republicans an additional incentive to do so. It is a redundant incentive because Republicans think -- mistakenly -- that they have sufficient constitutional reasons for doing so.

Today 60 Senate votes are required to end a filibuster. There are 55 Republican senators but not five Democrats who will join them. Republicans may seek a ruling from the chair -- Vice President Cheney presiding -- that filibustering judicial nominees is impermissible, a ruling that a simple majority of senators could enforce.

Democrats say they will retaliate by bringing the Senate to a virtual halt -- easily done within Senate rules. Republicans rejoice that such obstructionism would injure the Democrats. But conservatives will come to rue the injury done to their cause by the rule change and by their reasoning to justify it.

Some conservatives call filibusters of judicial nominations unconstitutional because they violate the separation of powers by preventing the president from doing his constitutional duty of staffing the judiciary. But the Senate has the constitutional role of completing the staffing process that the president initiates.

Some conservatives say the Constitution's framers ``knew what supermajorities they wanted'' -- the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc. -- therefore other supermajority rules are unconstitutional. But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted. Besides, the Constitution says each house of Congress ``may determine the rules of its proceedings.''

Some conservatives say there is a ``constitutional right'' to have an up-or-down Senate vote on nominees. But in whom does this right inhere? The nominees? The president? This is a perverse contention coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights. And conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.

Some conservatives oddly seem to regret the fact that the government bristles with delaying and blocking mechanisms -- separation of powers, bicameral legislature, etc. The filibuster is one such mechanism -- an instrument for minority assertion. It enables democracy to be more than government-by-adding-machine, more than a mere counter of numbers. The filibuster registers intensity, enabling intense minorities to slow or stop government.

The crucial, albeit unwritten, rule regarding judicial nominees was changed forever 18 years ago by the Bork confirmation fight: Now both sides in the Senate feel free to judge and accept or reject nominees on the basis of their judicial philosophies. So, conservatives, think:

The future will bring Democratic presidents and Senate majorities. How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage?

And pruning the filibuster in the name of majority rule would sharpen a scythe that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations -- and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal?

Exempting judicial nominations from filibusters will enlarge presidential power. There has been much enlargement related to national security -- presidential war-making power is now unfettered, Congress' responsibility to declare war having become a nullity. Are conservatives, who once had a healthy wariness of presidential power, sure they want to further expand that power in domestic affairs?

The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.

It has been 98 years since Republicans have had 60 senators. But in the last 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.

No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters.


Progressive Argument For Allowing Filibuster
Site—The Nation
Editorial | posted April 7, 2005 (April 25, 2005 issue)
Legislative Bomb

Seventy-four percent of Americans surveyed by CBS News said Congress intervened in the Terri Schiavo right-to-die case to advance a political agenda, not because they cared what happened to the Florida woman whose last days took center ring in a grotesque national media circus. The people called it accurately, as right-wingers on Capitol Hill confirmed with incendiary reactions to Schiavo's death. "The time will come for the men responsible for this to answer for their behavior,'' snarled House majority leader Tom DeLay; GOP Senator John Cornyn wondered aloud on the Senate floor whether there was a connection between the "perception" that judges are making political decisions and the fact that "some people...engage in violence." Both DeLay and Cornyn took some appropriate hits for playing to the worst instincts of a country where in recent months judges and their families have been the targets of violence. But few in Washington were confused about the meaning of DeLay's warning: While he might muse about impeaching federal jurists, his real passion is for removing barriers to the Bush Administration's campaign to pack the courts with right-wing judicial activists.

DeLay has made no secret of his desire to "go nuclear" in the fight over judicial nominations, and Senate majority leader Bill Frist, another Schiavo interventionist, shares his enthusiasm for blowing up the rules that allow a minority of senators to use a filibuster--best understood as the unlimited extension of debate--to block controversial judicial nominations. During Bush's first term, when the Senate flipped back and forth between Republican and Democratic control, Democrats managed to derail ten of the Administration's 229 nominees for federal judgeships--in Judiciary Committee votes when the Democrats controlled the committee and later, when Republicans took charge, with filibusters. Among those blocked were Bush's most extreme picks for federal appeals court benches in the West and South, such as California Supreme Court Justice Janice Brown, who argues that the First Amendment permits corporations to make false or misleading representations without legal ramifications, and Texas Supreme Court Justice Priscilla Owen, whose moves to undermine protections for women seeking abortions were so radical that another justice, right-winger Alberto Gonzales (now US Attorney General), decried them as an "unconscionable act of judicial activism."

With Republicans more firmly in control of the Senate after the 2004 elections, Bush has resubmitted the names of Brown, Owen and five more blocked nominees. Even with the Senate split fifty-five to forty-five, Democrats still have the forty votes needed to maintain a filibuster. But Republican leaders in the Senate, including Frist, are so determined to satisfy the Administration and their party's social conservative base that they have signaled their willingness to invoke the "nuclear option" of radically rewriting the Senate's rules to make filibusters of judicial nominees virtually impossible. So the fight is on, not just to save a Senate rule but to maintain this country's already compromised system of checks and balances on executive and legislative overreach.

The filibuster takes its name from the Dutch word for "pirate," and it has long been associated with a buccaneering approach to the legislative process. Dissident minority senators have historically tossed the final roadblock of the filibuster in the way of nominations or laws they could not prevent in any other manner. As with most tools, the filibuster can be used for good or ill. For every Paul Wellstone filibustering to block a corrupt bankruptcy "reform," there was a Strom Thurmond filibustering to slow the civil rights movement. Unlimited debate was allowed until 1917, when President Wilson, worried about the prospect of antiwar senators like Robert La Follette using the filibuster to challenge his rush to enter World War I, prevailed upon the Senate to adopt a rule allowing two-thirds of senators to vote to end a filibuster. In 1975 the ratio was modified to three-fifths, or sixty votes, where it has remained. But there has rarely been serious discussion about eliminating the filibuster until now.

If the nuclear option is invoked, Congress will become an altered branch of government. In the absence of rules that require the consideration of minority views and values, the Senate will become little different from the House, where the party out of power is reduced almost to observer status. That's why Robert Byrd, dean of the Senate and the most ardent champion of the chamber's rules, called the nuclear option "a legislative bomb that threatens the rights to dissent, to unlimited debate and to freedom of speech."

The nuclear option could take a variety of forms. Under the most likely scenario, Vice President Cheney, president of the Senate, would rule that filibusters against judicial nominees are unconstitutional. If a bare majority of the Senate upheld the move, such filibusters would for all practical purposes be eliminated, and only fifty-one votes would be needed to approve a nominee. Democrats would effectively lose their last tool for blocking Bush choices not just for the lower courts but also for the Supreme Court seats that are all but certain to open before his term ends.

If the filibuster survives in its current form, Democrats will be credited with a significant legislative victory--keeping the process open for the Supreme Court nomination fights, during which the GOP would have a hard time changing the rules. But there aren't enough Democratic senators to prevent Frist & Co. from going nuclear. The "no nukes" camp must be expanded to include at least a handful of Republicans. It makes sense to begin with the GOP's dwindling circle of moderates: Maine's Susan Collins and Olympia Snowe, Rhode Island's Lincoln Chafee, Pennsylvania's Arlen Specter, Indiana's Richard Lugar. If ever there was a time when thinking Republicans needed to separate themselves from their party's jihadist wing, this is it. But it makes just as much sense to pressure conscientious conservatives. Already two former GOP senators with pristine conservative pedigrees, James McClure of Idaho and Malcolm Wallop of Wyoming, have argued in a Wall Street Journal op-ed that going the nuclear route could mean the end of the Senate as "a continuing body with continuing rules."

While Frist and his allies claim they only want to change the rules for consideration of judicial nominations, McClure and Wallop argue that "it is naïve to think that what is done to the judicial filibuster will not later be done to its legislative counterpart." They add, "Without the possibility of a filibuster, a future majority leader could bring up objectionable international commitments with only an hour or two for debate, hardly enough time for opponents to inform the public and rally the citizenry against ratification."

The abuses that McClure and Wallop fear ought not to be the concern merely of Democrats and retired Republican senators; current GOP senators who presume to speak for more than the narrowest and most partisan wing of their party--people like Arizona Senator John McCain--have a responsibility to speak up. That is most likely to happen if they hear a loud call along the following lines from their constituents: This is not an issue of Republican versus Democrat, nor even liberal versus conservative; this is a moment when we decide whether this country will remain a democracy in which those who govern must play by the rules, or will become a winner-take-all system where the gravest fear of the founders--tyranny of the majority--will be the lasting legacy of George W. Bush, Tom DeLay and Bill Frist.


Conservative Argument to Repeal The Filibuster
Site—National Review
March 21, 2005, Monday
SECTION: National Review Online
HEADLINE: Will on Filibusters
BYLINE: By Mark R. Levin
In his Sunday column, George Will makes his most comprehensive argument yet against Senate Republicans' modifying the filibuster rule to prevent its use against judicial nominees. I respond to some of his major points below.

Will writes: Some conservatives call filibusters of judicial nominations unconstitutional because they violate the separation of powers by preventing the president from doing his constitutional duty of staffing the judiciary. But the Senate has the constitutional role of completing the staffing process that the president initiates.

Of course, this begs the question. If a majority of the senators decide that they want to change one of their rules to prevent the filibustering of judicial candidates, then the Senate is, as Will puts it, "completing the staffing process that the president initiates." Nobody is denying the Senate's role, just what it's doing with that role, and its impact on presidential as well as senatorial powers.

Will writes: Some conservatives say the Constitution's framers "knew what supermajorities they wanted"--the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc.; therefore, other supermajority rules are unconstitutional. But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted. Besides, the Constitution says each house of Congress "may determine the rules of its proceedings."

Actually, Will conflates two points here. The Constitution is a governing document that attempts to lay out the powers of the various branches and levels of government. It stands originalism and limited government on its head to argue that where the Constitution is silent, the federal government (including the Senate) is free to act. Will seems to have adopted Sen. Joe Biden's position, or worse. When Biden (D., Del.) was asked if he'd support Justice Antonin Scalia for Chief Justice, Biden responded that he could not, as Scalia doesn't believe in the Constitution's "unenumerated powers."

The Constitution is silent about a lot of things, such as abortion and same-sex marriage. To argue that its silence is not limiting assumes it's not limiting to any branch of the federal government, including the judiciary. In fact, the Constitution says very little about the power of the judiciary, and its silence has been used by judicial activists to set policy throughout our society. Here, the Senate minority's conduct is actually worse than exercising an "unenumerated power." It is affirmatively denying the full Senate the opportunity to exercise an enumerated power--its advice-and-consent function. If the majority party in the Senate does not wish to exercise that power, it's not compelled to do so. But if it does wish to exercise that power, which is the present case, then the majority can change the rule by which the minority is thwarting the majority, i.e., the filibuster rule.

As to the second point--that the Constitution's authorizing the Senate to set its own internal rules empowers the Senate to impose a supermajority requirement on itself--this has always seemed an odd argument to me. What would Will say, I wonder, if the Senate adopted rules that conflict with some explicit provision of the Constitution? If I follow his logic, the Senate's power to set its own rules, whatever the rules, is given as much weight as explicit constitutional provisions. In any event, if the Senate majority believes the minority's imposition of a supermajority violates the Constitution, and then acts to change the rule, in the end that's all that matters.

Will writes: Some conservatives say there is a "constitutional right" to have an up-or-down Senate vote on nominees. But in whom does this right inhere? The nominees? The president? This is a perverse contention coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights. And conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.

There is certainly no requirement that the full Senate vote on any nominee. I suppose there's no requirement that the Senate conduct business of any kind. I don't know where this gets us. However, if the majority wants to exercise its constitutional authority, and is prevented by the minority, it seems obvious that the Senate majority is being denied the right to perform its constitutional function. It need not cooperate with the minority's political objective. That's the entire point. That's why the demands for modifying the filibuster rule. This is a right (or power) that belongs to the Senate majority, which speaks for the Senate.

Will writes: Some conservatives oddly seem to regret the fact that the government bristles with delaying and blocking mechanisms -- separation of powers, bicameral legislature, etc. The filibuster is one such mechanism -- an instrument for minority assertion. It enables democracy to be more than government-by-adding-machine, more than a mere counter of numbers. The filibuster registers intensity, enabling intense minorities to slow or stop government.

Some conservatives, like me, are more interested in discerning actual constitutional powers than arguing for "minority assertion." As Will writes, the Constitution explicitly provides for separation of powers, a bicameral legislature, etc. It is a document of enumerated authorities. The Framers' main concern was with the concentration of power in the hands of a few people or entities. Hence, divided government, in which each branch jealously guards its own power. The filibuster has nothing to do with this. Moreover, while the filibuster is used by a minority to slow or thwart a majority, Will's argument assumes that the minority is the group attempting to "slow or stop government." In fact, it is the minority, as the Senate is presently configured, which seeks to expand the power of government by preventing the confirmation of originalist judicial candidates. And, when instituted by the current minority in the legislative context, it would be used to prevent spending and tax cuts, both of which limit government.

Indeed, throughout this debate, the advocates of the filibuster have succeeded in portraying it as a great deliberative tool that has been used for good--such as stopping a misguided majority. My guess is it has been used for good and bad, but I've yet to see its defenders present any careful and comprehensive analysis of its use over history. Therefore, we need not accept Will's contention on face value. I do recall the filibuster was used, albeit unsuccessfully, by segregationists like Senator Robert Byrd to try to stop the passage of civil-rights legislation.

Will writes: How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage?

This question assumes too much. First, I can't imagine any nominee, including the most activist candidate, testifying that he supports a constitutional right to same-sex marriage. We've witnessed enough such hearings to know that nominees won't say such things for a variety of reasons. Second, I can't imagine any president nominating a candidate who had a record of supporting same-sex marriage. Third, it can just as easily be argued that the Democrat filibuster is preventing candidates who oppose same-sex marriage from ascending to the federal bench. The argument against filibustering judicial candidates, from the perspective of those of us who believe it's unconstitutional, has nothing to do with any particular or potential judicial ruling and outcome.

Will writes: And pruning the filibuster in the name of majority rule would sharpen the shears that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations--and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal?

The Panama Canal Treaty is a perplexing example as it proves the opposite of Will's point. It was ratified by a two-thirds vote of the Senate, as the Constitution requires. And since a two-thirds vote would have been enough to defeat a filibuster, what's the point here?

Of course Senate Democrats, regaining the majority, might end the rule even as used against legislation. They might do any of 100 things. But I await the evidence from the filibusters' proponents that even eliminating the rule entirely would result in unwelcome consequences. I note that the House of Representatives operates without a filibuster rule.

Will writes: Exempting judicial nominations from filibusters would enlarge presidential power. There has been much enlargement related to national security--presidential war-making power is now unfettered, Congress's responsibility to declare war having become a nullity. Are conservatives, who once had a healthy wariness of presidential power, sure they want to further expand that power in domestic affairs?

The president's power wouldn't be enlarged. Until this president's election, no president has faced filibusters, or threatened filibusters, against ten of his nominees, with more to come. We're talking about returning power to the presidency that existed for all but four years of our history--prior to the election in 2000 of George Bush. As for presidential war-making power, which has nothing at all to do with the filibuster debate, Congress still retains the power to cut off funding for any war, as it did in Vietnam. As for Congress declaring war, the Constitution is silent on exactly how Congress is to make such a declaration. Respecting the Iraq war, Congress adopted a joint resolution authorizing the president, on his own discretion, to make war. I see no substantive difference between a declaration and resolution in this regard. Apparently neither did Congress.

Will writes: The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.

It has been 98 years since Republicans have had 60 senators. But in the past 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.

No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters.

Of course, if the Republicans elect 60, 65, or 70 senators, they can defeat the filibuster. And if they do so each election cycle, then the minority will be too small to conduct filibusters. But what happened to Will's point about the importance of "minority assertion"? Is it only important when the minority consists of, say, 41 senators, the current number needed to conduct a filibuster? And why is that? Early in the Senate's history, a single senator could conduct a filibuster and block the Senate's business. Now, that was true "minority assertion."

The problem today is a systemic one, i.e., the misuse of a Senate rule to block judicial nominees from receiving the consent (or rejection) of the full Senate. Each of these candidates reportedly has enough votes for confirmation, but for the unprecedented use or threat of filibusters. The majority has every right and reason to change the rule.


Progressive Argument to Repeal The Filibuster
Site—Salon
Dump the filibuster!
How I learned to stop worrying and love the nuclear option.
- - - - - - - - - - - -
By Farhad Manjoo

May 20, 2005 | Let's start by acknowledging the obvious: The nuclear option is unprincipled. There's nothing commendable about the Republicans' attempt to steamroll the slightest opposition to their authority, and you can't have much respect for a team that wants to illegally change the rules in the middle of the game.

Now that we have that out of the way, here's an idea to consider: Republicans may not be wrong to want to eliminate the filibuster, and Democrats have nothing to lose by letting the GOP win this one. The filibuster is, after all, one of the more anti-democratic parliamentary maneuvers in the federal government's most undemocratic body, the Senate. A tactic not envisioned by the founders, and most famously used by Southern racists to frustrate the passage of civil rights legislation, the filibuster doesn't exactly have a savory tradition.

More than that, the filibuster is no friend to Democrats, whose policies, if not politicians, appeal to a majority of the American public. They may be in the minority now, but Democrats can win again. They can take the Senate and they can take the White House, possibly both, possibly soon. When that day comes, you can be sure Republicans will use the filibuster in the same way that Democrats are using it today. Wouldn't it make sense to take that option away from the GOP now, when they're agitating for the change -- and then, in the future, to hoist them with their own petard?

The problem with the filibuster stems from the problem with the Senate, which gives every state two representatives, regardless of population. In the Senate, the two Republican members from the nation's smallest state -- Wyoming, with a population of less than 500,000 -- often cancel out the wishes of the two Democratic senators from the nation's largest state, California, with almost 34 million people, 68 times the number in Wyoming. The filibuster, which allows any member to keep debating an issue unless there are 60 members willing to stop him, exacerbates the undemocratic nature of the Senate. If everything in the Senate must meet with the approval of at least 40 senators in order to receive the blessing of the body, technically a very small minority of Americans can obstruct the will of the majority. The 40 senators from the 20 least populous states represent only 29 million people. In other words, the filibuster gives a tenth of the nation's population the power to veto the will of the other 90 percent.

Speaking on the floor of the Senate in the past couple of days, Democrats have argued that this is the way it was meant to be. The founders, who wanted to prevent a popular majority from tyrannizing a minority, thought of the Senate as a body that would cool the passions of the population, Democrats say. That may be so, but it's not true that the founders wanted to give small numbers of senators the right to frustrate the rest of the body through endless debate. "The very fact that the filibuster exists is a historical accident," says Frances Lee, a political scientist at the University of Maryland and a coauthor of "Sizing Up the Senate: The Unequal Consequences of Equal State Representation." The filibuster was created in 1806 when the Senate changed its rules and failed, more or less by accident, to include a provision to limit debate; Rule 22, which required two-thirds of the Senate to agree to limit any debate, was adopted more than a hundred years later, in 1917. In 1975 the number of senators required to invoke "cloture" on debate was reduced to three-fifths of the Senate, or 60 votes.

Which party does the filibuster benefit? Support for a particular parliamentary rule depends, Lee notes, on whose ox is being gored. At the moment the filibuster is a tool for liberals, who've used it to block President Bush's judicial nominees. In the past, it's been used effectively by conservatives. Strom Thurmond spoke for a record 24 hours and 18 minutes against the Civil Rights Act of 1957. FactCheck.org notes that the last senator to filibuster the Civil Rights Act of 1964 was Democrat Robert Byrd of West Virginia, "who spoke for 14 hours and 13 minutes, finishing the morning of June 10 -- the 57th day of debate on the measure."

There is an argument to be made, however, that over the long term, the filibuster might be more a hindrance than a help to Democrats, and that therefore it might be in their interest to get rid of the judicial filibuster now -- and to welcome any further weakening on legislative filibusters that the move may prompt. One way to look at this question is philosophically. The filibuster, writes the American Enterprise Institute's Norman Ornstein, is a conservative tool -- "it delays government action in order to overcome intense minority opposition and to build broader popular support." Liberalism is an activist pursuit; to get things done -- things like passing civil rights reforms -- you need to change the status quo. Conservatism, by contrast, favors the status quo and, therefore, makes better use of the filibuster.

That philosophy may not match today's reality. Frances Lee points out that today it's Republicans who want to get things done -- they want big changes on foreign policy, domestic policy, and judges -- and Democrats who are playing defense. But are Democrats always going to be in the minority and on defense, rather than offense? Slate's Timothy Noah, a longtime liberal objector to the filibuster, has noted that "in grooving on the filibuster, Democrats show that they are unwilling to consider" a future in which they might be back in power again.

You may say there's only a small chance that Democrats will win the Senate in 2006 and the presidency in 2008, and that therefore, they should fight to keep alive what little power they have. Today, there are 44 Democrats in the Senate, and 55 Republicans. (One member, Vermont's Jim Jeffords, is independent.) Indeed Sen. Harry Reid, the Democratic leader, recently said it would take a "miracle" for the Democrats to win a majority in 2006. He may be right. But it's also true that however slim the chances are of Democrats' winning 51 Senate seats, they're a lot better than the possibility of their winning 60 seats. And by fighting for the filibuster now, Democrats are essentially allowing Republicans to veto future Democratic federal judges unless the Democrats meet the 60-vote requirement.

If Democrats were acting in their best long-term interest, they wouldn't want to give 40 Republican senators the right to block their actions -- because Republicans in the Senate generally come from smaller states, and therefore generally represent many fewer people than do Democrats. If you consider that every senator represents half the number of people in his or her state, then the 40 Republican senators from the smallest states represent only 56 million Americans -- 20 percent of the population. The 40 Democratic senators from the least populous states, meanwhile, represent 90 million Americans, or 32 percent of the population. When Democrats insist on filibustering judges today, they may say that they are speaking for at least a third of the nation (and in fact they are likely speaking for a lot more, since all the Democrats in the Senate represent 143 million people, while the Republicans represent 138 million). But by fighting for that right, Democrats are also effectively allowing the 40 Republicans who speak for one-fifth of the nation to one day block a Democratic agenda.

Frances Lee and Bruce Oppenheimer, a Vanderbilt political scientist who was Lee's coauthor on "Sizing Up the Senate," say that if they were to reform the Senate, the filibuster is not the first thing they'd choose to tackle. There's a lot that's wrong with the Senate -- it allows, for example, a committee chair who may represent a fraction of the nation to set the policy agenda -- and fixing those things would be more fruitful first steps. For those reasons and others, neither Lee nor Oppenheimer is a fan of the nuclear option.

Still, it's not every day that one gets a chance to fix the Senate. Senators like the way the body works; they like that every member, however few people he or she represents, gets to have a say, and they're often unwilling to make any changes in that system. Others on the left have recognized that the nuclear option gives Democrats a once-in-a-lifetime chance to rewrite the rules in their long-term favor. Besides Slate's Noah, the L.A. Times has supported the move, as has Jonathan Cohn in the New Republic. It may not be an easy pill to swallow right now -- but imagine having 52 Democratic senators one day, a Democratic president, and the chance to nominate a real liberal to the Supreme Court. And imagine, too, the Republicans not having any power to stop you.

It's a delicious thought.


BTD Recommendation:
While the pros and cons for each argument make the choice difficult, I believe the best interest of the American people is in keeping the filibuster.

Rationale: Unlimited debate, or filibusters, have occurred in the Senate since 1806 when senators dropped a rule that allowed a majority of the Senate to put an end to discussion and call for a vote. Over the following 111 years, once a filibuster began, there was simply no way to end it.
That changed in 1917 when Woodrow Wilson's plans for World War I were being blocked by filibusters. As a result, the Senate adopted Rule XXII. This provided senators a method in which to end the filibuster by garnering a two-thirds vote on a motion to cut off debate (cloture).

The Senate amended Rule XXII In 1975 so that in most cases cloture required the vote of three-fifths of the senators. With today's political configuration, 60 rather than 67 senators are needed to end most filibusters.

So there is currently a way to stop a filibuster.

Removing the filibuster would shift the balance of power completely to the majority.

While some of you may be wondering why there’s anything wrong with that, consider for a moment that the next election shifts the party you support into the minority, or vice versa.

Finally, consider that the founding fathers recognized the danger in operating on the passions of the moment and purposely placed “roadblocks” to rapid government action all through our political system. They did this for a reason—to temper and slow the process, force debate, compromise and conciliatory behavior.
The majority hasn’t always been correct in their assumptions about the needs and concerns of all Americans. There’s no reason to think that they suddenly will now.

BTD opines that the loss of the filibuster, in the long run, will hurt the American people far more than it will help them.

7.04.2005

Should We As Citizens Ask For An End To The Filibuster?

On a day filled with patriotism and nationalistic pride, I am interested in discussing the potential end of a rule that that may change the political structure of the United States forever:

Should We As Citizens Ask For An End To The Filibuster?

As we navigate through the pros and cons of this issue, I’d like both progressives and conservatives to suspend for a moment their fervor over their latest “passion of the day” and consider only what the long-term ramifications, positive and negative, might be for the entire country for each outcome related to the filibuster argument.

It might also behoove the wise person to remember how quickly and easily the balance of power in this country can shift. Consider placing yourself into the “other side’s shoes” for a moment as you mull the potential implications.

We begin with a two-part analysis by Vikram David Amar, a professor of law at the University of California, Hastings College of the Law in San Francisco. Amar is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. Before teaching, Professor Amar practiced at the firm of Gibson, Dunn & Crutcher.

I did not take the liberty of exploring Mr. Amar’s political leaning, since I will be presenting both the for and against arguments of the progressive and conservative views in the next post. My intention here was to present the background and lay the framework for legal comparison and analysis when reviewing the upcoming political party arguments.


Site-Findlaw
With a Potential Supreme Court Nomination At Stake, Questions of The Filibuster's Constitutionality Linger
By VIKRAM DAVID AMAR
----
Friday, Jun. 13, 2003

This is Part One of a two-part series by Professor Amar on the Constitution and the filibuster. - Ed.

Republican Senate leaders have been voicing extreme dissatisfaction over the Democrats' use of the filibuster to block final consideration of President Bush's candidates - such as Miguel Estrada and Priscilla Owen - for the federal appellate bench. Over the last week, in particular, things have heated up quite a bit.

Senate Majority Leader Bill Frist has proposed significant changes to the rules regarding filibusters. And on June 5, the Senate Rules and Administration Committee held some remarkable hearings on the filibuster.

Prior to the hearings, the debate had focused on the history and politics of the filibuster. (Both were the subjects of a recent column for this site by John Dean.) In contrast, last week's Committee questioning centered more on various interesting and profound constitutional questions surrounding the practice, which I will take up in this two-part series of columns.

These questions are going to get more and more important, as the summer nears, and the possibility of a Supreme Court vacancy looms.

The Filibuster and the Cloture Vote: Some Background

The filibuster is a U. S. Senate practice whereby a single Senator, or his minority party, can block full Senate consideration of a bill or nomination by extending debate on the proposal indefinitely. The resulting "filibuster" can ordinarily be stopped only by a "cloture" vote, which requires 60 of the 100 Senators (a supermajority) to vote to end debate, and bring the bill or nomination to a final vote.

The filibuster, obviously, plays a crucial role whenever only 50 to 59 Senators support a given bill or nomination. It can ensure that the proposal is not approved, despite the fact that a majority of the Senate (or half the Senate, plus the Vice President, who breaks ties) would approve the measure if a vote were taken.

This right to endless debate evolved in the Senate over the eighteenth and nineteenth centuries. It is now embodied in the Senate's own formal rules - particularly Rule XXII, which guarantees unlimited discussion absent cloture.

Filibusters of old required the filibustering party to actually stand and hold the Senate floor by speaking continuously, in order to delay a final vote, as depicted in Frank Capra's famous movie "Mr. Smith Goes to Washington," which featured Jimmy Stewart as a young and idealistic Senate newcomer. Today, by contrast, a minority party can indefinitely put off a vote on a bill or nomination by simply indicating to Senate leaders that this indefinite delay is desired - unless there are 60 Senators in favor of cloture.

The Constitutional Argument Against the Filibuster

The June 5 hearing - led by Trent Lott, the former Republican Senate majority leader - posed a few constitutional questions relating to the filibuster. Senator Lott stated that he was cognizant that federal courts, including the Supreme Court, might well decline to resolve these questions based on the "political question" doctrine, which suggests that some questions are not susceptible for judicial review. But he still wanted answers, referring to the oath he had taken to uphold the Constitution.

First, the Senators asked, how can one square the filibuster device and practice with the Constitution itself?

As Professors Erwin Chemerinsky and Catherine Fisk have noted in an elegant law review article, in seven instances, the Constitution requires the use of supermajority rules by one or both houses of Congress. But the filibuster rule is not among them.

For instance, the Constitution requires a 2/3 supermajority of each House to override a Presidential veto of legislation. In addition, it requires a 2/3 majority of the Senate to convict and remove an officer of the United States who has been impeached by the House (as many will remember from President Bill Clinton's impeachment).

In short, some suggest, ordinary majority rule is the Constitution's baseline, and the Constitution is careful and explicit in detailing the situations in which supermajorities are required. Thus, the Constitution's drafters plainly knew how to impose a supermajority rule when they wanted to. They didn't, however, impose the supermajority requirement for ending debate in the Senate.

Therein lies the primary argument against the constitutionality of the filibuster: In failing to expressly include the Senate cloture rule, the Constitution implicitly excludes it. (The Latin term for this interpretive rule is expressio unius est exclusio alterius.) The Constitution, on this reading, gives an exhaustive, exclusive list of all supermajority rules that can be applied in the House or Senate.

The Argument for the Filibuster's Constitutionality

Unfortunately for filibuster opponents, things are not that simple. Another hallowed interpretive principle suggests that a list - such as the Constitution's list of supermajority vote situations - can be illustrative, not exhaustive. It can suggest the kind of circumstances in which a supermajority rule might be appropriate, without providing an exhaustive list of all such rules that can ever be imposed.

Moreover, the Constitution, in Article I, section 5, anticipates that the House and Senate will make rules beyond those set forth in the Constitution, and specifically gives them authority to do so: "Each House may determine the rules of its proceedings." And, aren't the filibuster rule and companion cloture vote rule just these types of procedural rules? Remember, when a filibuster is ongoing, the cloture rule technically requires a supermajority to end debate - a procedural occurrence - not a supermajority to enact the legislation or approve the nomination in question.

Finally, most constitutional analysts are understandably reluctant to disturb practices that have a long historical pedigree - which the filibuster certainly does. In light of this reality, the constitutional case against the filibuster becomes even weaker.

Yet Another Supermajority Rule Comes Under Fire

In any case, one might wonder, why don't filibuster opponents just switch, rather than fight? Why don't they just change the Senate cloture rule itself?

Because that, too, would require a supermajority vote, according to another provision in the Senate Rules. Rule XXII by its terms provides that any motion to amend the Senate Rules requires the agreement of two thirds present and voting. If all 100 Senators are present, 67 votes would thus be needed.

Is this second supermajority rule constitutional? It depends on how one reads the Constitutional provision that says "each House" has the power to determine "the Rules of its Proceedings."

First, does "each House" mean a majority of each house? The answer is probably yes.

Consider the full text of the relevant provision, Article I, section 5: "Each House may determine the Rules of its Proceedings, punish its members for disorderly behavior, and, with the Concurrence of two thirds, expel a member." Only expulsion requires a supermajority.

Moreover, the contrast between what is expressed and what is omitted occurs within a single sentence. As a result, the reasoning of expressio unius is quite powerful. As I suggested above, it remains debatable whether the Constitution's seven supermajority references are illustrations, or a rather complete list. But when a 2/3 supermajority requirement is imposed in one case in a single sentence, and left out in others in the same sentence, it seems safe to assume the other cases are governed by a simply majority vote.

But the power the majority has is over "the Rules of its proceedings." And that leads to another wrinkle. Rule XXII itself was enacted by a simple majority of the Senate. So, arguably, it simply represents a legitimate exercise of constitutional power that belonged to a past Senate majority.

That brings us to the crux of the issue: Must a majority of each new Senate have the power to revisit the Rules made by a majority of Senators at an earlier time? Is that what "each House" means? Put another way, does each Senate at every point in time have the power to determine, by its own simple majority, its own rules? Or can past Senates bind themselves, and future Senates, by adopting supermajority rules concerning rule amendment, such as the one in Rule XXII?

Right now, this issue is crucial. Currently, there may exist a majority in the Senate in favor of altering both the rule about rule changes, and the cloture rule, to make filibusters in judicial nominations less easy. If this working Senate majority is able to change the filibuster rules to bring nominations to the floor of the Senate, then virtually all of the President's judicial nominations will likely sail through, and the federal judiciary will be changed for a long time to come.

More generally, this kind of temporal question - can a past Senate be able to entrench its own rules and bind future Senates? - resonates with important, larger Constitutional themes. I will unpack this very important entrenchment idea, and its broad-ranging implications, in my next column in this series.
End part one

Part two
Can the Senate Bind Itself So that Only a Supermajority Can Change Its Rules?
A Key Issue in the Controversial Filibuster Debate
By VIKRAM DAVID AMAR
----
Friday, Jun. 27, 2003


This is Part Two of a two-part series by Professor Amar on the Constitution and the filibuster. - Ed.

With the Supreme Court's Term wrapped up, speculation about possible retirements and replacements is running high. As a result, the continuing judicial nominations debate in the Senate has taken on an increased importance.

As I explained in my last column, the Senate's Republican leadership has been exploring ways to prevent the Democrats from using the filibuster device. They would like to ensure that, instead, a simple majority rule governs when it comes to judicial nominees.

Some have argued, in support of moving towards a majority vote approach, that the filibuster itself is unconstitutional - and, indeed, undemocratic. But it's somewhat likely that even if this argument were correct (a question addressed in my previous column), Republicans still wouldn't be able to get a court to strike down the filibuster rule, due to the "political question" doctrine and other jurisdictional stumbling blocks.

As a result, Republicans, from a practical standpoint, have only one recourse: They can try to change the filibuster rule through normal Senate procedures. But there's a catch. Under another Senate rule, part of Senate Rule XXII, to change the filibuster rule itself requires a supermajority of 67 votes.

That second supermajority requirement raises the question I will take on in this column: Can a simple majority of the Senate make rules that require a supermajority to undo?

The Basic Constitutional Challenge To Filibusters: A Recap

To provide some background, I will briefly recap some of the main points in my last column. (Readers familiar with that column thus may skip ahead to the next section.)

Currently, the filibuster allows Democrats to block judicial nominations that have majority, but not supermajority, support. Sixty so-called "cloture" votes are needed to end a minority filibuster and bring a nomination to a final vote on the Senate floor.

As a result, nominees with fifty-nine or fewer supporters are out of luck as long as the cloture rule stands. But Senate Republicans - who command a majority, but not a supermajority, in favor of certain controversial nominees - would like to change that.

Here's their constitutional argument, in brief: The Constitution itself is quite clear about when supermajorities are required (as, for example, in overriding a Presidential veto). That implies that otherwise, majority rule governs. So the Senate cannot, constitutionally, require a supermajority vote to end debate on a matter. The cloture vote supermajority requirement is thus unconstitutional, and must be replaced by a simple majority vote procedure.

But there's a response to this argument: Granted, the Constitution does not by its terms require a supermajority to end debate. But neither does it forbid the Senate from operating under a supermajority approach. At most, it's agnostic on the issue.

Meanwhile, the Constitution explicitly authorizes "each house" of Congress (that is, the House and the Senate) to "determine the Rules of its Proceedings" - which would seem to leave the Senate's rules up to the Senate, not the Constitution itself.

According to this argument, a rule about how many votes are needed to end debate is a "rule of [the Senate's] proceedings." As a result, the cloture vote is perfectly constitutional.

Whether or not one agrees with this argument, once again, the practical reality is that no court is likely to strike the cloture vote rule down.

The Republicans' Last Resort: Attacking the Rule-change Rule

That brings us to the Republicans' last resort. They could try to change Senate Rule XXII, which requires a supermajority (67 votes, or 2/3 of the Senate) for rule changes, so it requires only a simply majority. Then they could try to change the filibuster rule itself, so that cloture requires only a simple majority, where judicial nominations are concerned.

This time, the Republicans might not have to go to court to win. They could pass, by a majority vote, a new rule for rule changes. Then they could, among their colleagues, defend its validity on the grounds that the prior, 2/3 supermajority rule-change requirement in Rule XXII was unconstitutional, and no other Senate rule has been violated. Then they could invoke the new rule-change rule to change the filibuster rule by majority vote. And then they would be home free: They could essentially pick judicial nominees, including Supreme Court nominees, over Democratic protests.

If the Republicans took this route, would their argument - that the 2/3 majority rule-change rule is unconstitutional - be correct?

To begin to consider this question, recall that the Constitution stipulates that "each House may determine the Rules of Its Proceedings." "Each House" probably means "a majority of each House." But which majority? The majority now, or the majority when the rule was enacted? After all, a majority of the Senate passed the current version of Rule XXII, which requires 67 votes for any rule changes.

Put another way, can a past Senate majority (the one that enacted the rule-change rule) bind a future Senate majority?

Can An Older Senate Majority Bind a Current Senate Majority?

To permit past Senate majorities to tie the hands of future Senate majorities would, as legal scholars like to say, "entrench" past policies. And entrenchment is usually a bad thing - in a country devoted to majority rule generally, denying current majorities the ability revisit past rules is presumptively problematic.

But some people argue that majority rule arguments don't really work well when applied to the Senate. After all, the Senate is itself an institution not predicated upon majoritarian principles; small states - and their voters - have a bigger voice than do large states and their voters.

In spite of that, though, my sense is that most constitutional analysts believe that each new Senate over time has a right, by majority vote, to make whatever procedural rules it wants.

The Supreme Court seems to think so, too. In a number of cases arising in a variety of different constitutional areas, the Court has expressed its belief in the principle of legislative equality - meaning one legislature has the same powers as another, and by implication, that none has the power to bind its successor. Thus, there are strong indications in Supreme Court caselaw that the Court would not approve of the 67-votes-to-amend rule-change rule, and would deem it unconstitutional.

As with the issue of the constitutionality of the filibuster rule itself, it is likely that the Court would refuse to review the rule-change rule based on the political question doctrine. But we can't be completely certain: The Court has, in a broad sense, addressed, and corrected, Congressional rules before, in INS v. Chadha and Powell v. McCormack.

Moreover, we must always remember that just because a court may be reluctant to weigh in does not mean that there is no constitutional law to apply. If the Republicans can persuade Senate colleagues on the constitutional front, they could, at least in theory, still win the day. And it is useful for citizens to know, in any event, if their representatives are complying with - or flouting - the Constitution.

That means that the old Senate can't bind the current Senate. It also means that Republicans could, indeed, revisit the rule change rule; amend it to require only a simple majority, not a supermajority; and then, by majority vote, change the filibuster rule - and put through any nominees they want. Game, set, match.

Why Blackstone Would Have Hated the rule-change Rule

In probably the most important academic commentary on this topic, professors Erwin Chemerinsky and Catherine Fisk point out that the basic principle that "One legislature cannot bind subsequent legislatures" has a long history in the British law upon which American law liberally drew.

What is the rationale for the principle? On this point, Chemerinsky and Fisk invoke the storied British commentator Blackstone: "'Acts of Parliament derogatory from the power of subsequent parliaments bind not. . . Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind the present parliament.'"

Put more simply, the legislature's power is constant. When a legislature tries to make a future legislature inferior in power, by binding it, it violates that principle.

Moreover, binding a future legislature by requiring it to do certain things by supermajority vote leads to a special slippery slope. Suppose a prior legislature could impose a supermajority requirement on a future one - as a past Senate tried to do with the rule-change rule. Presumably, it could go further - and require absolute unanimity for rule changes, effectively setting its rules in stone. Indeed, it could go further than that, and require unanimity for all amendments of all laws, setting its laws in stone too.

Does Blackstone's View Apply in America, Too?

Of course, as Erwin and Catherine mention, in the United States, the legislature is not the sovereign - the source of all lawful power. Sovereignty resides in the people. That, after all, was the main message of the Declaration of Independence.

As a result, drawing on a British commentator may not be dispositive, given that there is no U.K. Constitution there to complicate matters. In the U.S., the real question becomes not whether one sovereign Senate can bind a future sovereign Senate, but rather whether We The People wanted to give earlier Senates the power to bind future ones.

But that question only leads to the same answer Blackstone gave, for there is no compelling reason to think We did. And indeed, it seems more democratic not to - and to allow all legislatures, like all of Us, to be "created equal."

Such "legislative equality" would imply that legislatures cannot bind their future successors. That means, in turn, that current legislatures can't blame the past (that is, those who are out of office, or even long dead) for what they do. Rather, they must take responsibility for it themselves. As a result, they are more accountable to current voters, who can be sure that whatever current legislators do is fully "up to them" and (if voters don't like it) "their own fault."

Another perspective also illuminates why it is undemocratic for legislators to be able to bind their successors. Congresspersons are supposed to serve limited terms, and then face re-election. But if they can immunize their decisions from later reconsideration, they effectively serve longer. Last election's candidate - the bum thrown out of office - can remain influential because he or she entrenched rules his successors cannot easily change.

Must the Constitution's Own Supermajority Rules Also Be Judged Invalid?

That leads us to a somewhat wild idea: Could the Constitution's own supermajority rules actually be problematic - in the sense that they conflict with deeper, more fundamental democratic principles that the Constitution embodies? Are they all therefore troubling - so that, say, the Senate's impeachment trials must also proceed by majority rule?

Fortunately, the idea is just as wild as it sounds. That's because majorities are free to impose supermajority requirements on themselves, provided the ultimate sovereignty is free to revisit those requirements by a simple majority vote.

That is the core principle the Senate's rule-change rule, Rule XXII, violates - and that is the core principle that makes Constitutional supermajority requirements, and the filibuster rule's supermajority requirement okay.

After all, without the rule-change rule, the Senate could do the same with its own filibuster rule. We the People can change the impeachment rule if we like, and replace it with a simple majority rule. The key is that the reins of power remain in the right hands - the hands of a simple majority, either of the respective House of Congress, or of We the People.

Or do they?

Is the Constitution's Own Rule-Change Rule Problematic?

To add even more complexity, the Constitution has its own rule-change rule. And guess what: It requires a supermajority.

That rule is Article V of the Constitution - which, as you may remember, requires Constitutional Amendments to be ratified by three-quarters of the states (or 38 out of 50).

That rule-change rule can thwart the desires of a majority of the states. More importantly, it can also thwart the desires of a majority of We the People. Consider, for instance, a scenario where the 13 smallest states ganged up to stop a given proposed Amendment. They could thwart majority rule, and the democratically-expressed desires of hundreds of millions of people.

So is it possible that Article V is itself inconsistent with the Constitution's animating spirit? And if not, why not?

As I've noted, the Supreme Court, and most legal commentators, believe that a majority of each newly-constituted Senate must have the power to revisit the rules of earlier Senates. Then why does not each newly-constituted majority of Americans have the sovereign right to revisit the rules (call them the Constitution) adopted by earlier generations?

These are profound questions that I will address in a column later in the summer. For now, let me just say that, as these questions indicate, the entrenchment debate in no way stops with the filibuster, and the Senate's rule-change rule.

Instead, the debate is far larger - touching on the broad, crucial question of how easy it is, or ought to be, for simple majorities to change the rules laid down by earlier generations. Are all generations also created equal?


Coming next at BTD: the conservative/progressive rationales for keeping and ending the filibuster.

Full Speed Ahead

Okay. The easy work has been completed. I’ve gotten together many of the links, I’ve found the first batch of books, I’ve registered with the blog search engines, blah blah blah.

I’ve kicked off the posting with articles concerning the contemplation of secession by factions at opposite ends of the political/ideological spectrum. What could be more fitting in illustrating the tremendous divide between Americans when large groups of people begin seriously considering secession from the nation.

I believe it is also a very fitting way to “birth” a blog that seeks to accomplish the enormous, daunting and oh-so-delicate task of bridging the political/social divide between progressives and conservatives.

I’ve given considerable thought to the overall posting format, too, but this is an area that is much more difficult to nail down with any specificity. Plenty of “experts” clack away daily, offering their instant punditry on the “passion of the moment,” so why bother trying to keep up with the “Blogses?”

No, my effort here isn’t designed to critique each and every breaking political news story, although many of those stories will certainly find their way into the archives of this blog over time.

This blog is here only to facilitate bridging the divide.

Understand that I chose this title very carefully because I did not want to give the impression I’d like someone to move to from one side to another.

Taking “sides” appears to have held a starring role in plunging the vast majority of us into the closed-minded, scornful and acrimonious mess we now find ourselves mired in.

I’m seeking a way in which we can avoid taking sides and instead, begin sharing sides.

Bridging the divide brings to mind the idea that one can venture over to the other side, take a look around, and then head back to the safety of familiar territory.

It also conveys the idea that one can simply head up on the bridge and mill about with others, soaking in the views….from all sides….

Did I mention that it’s a very high bridge, open only to traffic of the mind and heart?

One more thing, and I’ll leave you alone.

The page here is always a work in progress. If you’ve got ideas for discussion, links, or anything else you would like to see here, let me know.

In the meantime, don’t be a stranger; it’ll take us all to make this work.

Rumblings Of Progressive Secession

Site: San Francisco Chronicle
Secession!
Why stick around? The Bay Area is already a nation unto itself

G. Pascal Zachary

Sunday, April 20, 2003

The German computer scientists were talking heatedly about the war in the lobby of a University of California research lab where I was a visitor. I listened to them with curiosity because the government of Germany has condemned the U.S. campaign against Iraq, earning it the enmity of official Washington.

The German geeks casually told one another (in English) how friends back home kept phoning them, nervously asking about their safety, as if they expected a German to be lynched every day on Main Street for disloyalty to the American cause.

"I tell my friends I'm safe in the Bay Area," one German said. "People here even apologize to me for what Americans are doing in Iraq. They say they are sorry."

"Berkeley isn't America, and neither is San Francisco or Oakland," a second German added. A third interjected, "I don't think I would live anywhere else."

Listening to the conversation, I felt glad to be a resident of the Bay Area,

a place I've called home for 25 years. I told the geeks that in Omaha, Cleveland, Dallas, Los Angeles or even my native New York City they might be assailed by Americans who now view Germans as an enemy because of the German government's opposition to the war. But in much of the Bay Area, I said, Germans are moral heroes, standing up in favor of enlightened cosmopolitanism and against U.S. militarism in a manner that exposes the shallowness of President Bush's simple maxim, "You are either for us or against us."

The views of these Germans -- and my own views of official American power --

are heretical in America, highlighting the wide gulf between the iconoclastic Bay Area and the rest of the United States. This gulf, always present, seems more intensely felt now. There are no American flags waving on my street, or any of the streets I pass each morning when I bring my children to school.

A recent Field Poll notwithstanding, the people of the Bay Area seem more deeply opposed to the war on Iraq than anywhere else in the United States. Elsewhere in the country -- say, in New York City or Washington, D.C. -- critics of our government strive to be viewed as "responsible." In the Bay Area, dissenters are idealistic, stubborn, unpredictable -- and often seem irresponsible to the rest of the nation. Remember the vomit protest earlier this month? In Bay Area terms, it was an example of inspired street theater, but the rest of the country saw it as completely weird.

Of course, San Francisco, Oakland and Berkeley are cities full of weirdos --

misfits who relish turning respectable behavior upside down. Not surprisingly,

the anti-war movement is fractious in the Bay Area. Rather than presenting a "responsible" alternative to Bush's war -- say, for instance, by calling for hard sanctions, but no invasion of Iraq -- dissenters here are more likely to question the entire project of decapitating Saddam Hussein, pointing out that some of our closest allies (Pakistan, Israel) already have secretly acquired nuclear weapons and that the United States helped build Iraq's military arsenal in the 1980s when the country went to war against our archenemy Iran.

Bay Area people are more willing to accuse Bush of rank disloyalty, for selfishly trying to improve his re-election chances by going to war with Iraq in order to distract attention from the government's failure to smash al Qaeda.

Dissenters here see the illogic of capitalism at play in the world, the drive for oil and profits coloring the government's behavior rather than Bush's self- professed obsession with bringing freedom and democracy to the Arab world.

By raising uncomfortable questions about the "American empire," Bay Area people guarantee their marginalization in what passes for the national conversation. Being ignored hurts. One of my closest friends, a veteran Democratic activist, badly wants to engage the body politic on the issue of Bush's failed diplomacy, but he gets nowhere. "I've never felt more out of step with the rest of America," he tells me.

Join the club. No one is listening to people in the Bay Area. No one ever listens, actually. The Bay Area is out of sync with the United States on every political metric. Indeed, the people of the Bay have more in common politically and culturally with the geeks from Germany. Bay Area politicos would fit comfortably under the rubric of European "social democrats," favoring a humane welfare state, multilateralism and a ban on offensive military force. Yet in the skewed political structure of America -- where minority political parties are effectively silenced at the national level by the country's winner-take-all system -- the distinctive voice of the Bay Area vanishes into thin air.

Unlike Germany, where the minority Green Party has a stake in the ruling administration, there is no left-liberal party on the national scene. Ralph Nader may have grabbed enough votes to tilt the last presidential election in Bush's favor, yet he has no role in national government -- not in Congress, the administration or even in a federal agency.

The Nader saga illustrates the dilemma of Bay Area "social democrats." We are, like children in an English novel, not to be seen nor heard.

I wish to propose an immodest remedy for this sorry situation: We, the people of the Bay Area, need to leave the United States. We are held prisoner by a foreign power, colonized by an alien civilization. We require cultural and social self-determination. We demand, in short, a declaration of independence -- and our own nation.
More

Rumblings Of Conservative Secession

Site: WorldNetDaily
TESTING THE FAITH
Christians look to form
'new nation' within U.S.

Same-sex marriage called last straw prompting plan for 1 state to secede

________________________________________
Posted: May 24, 2004
1:00 a.m. Eastern
Calling the approval of same-sex marriage in Massachusetts "the straw that broke the camel's back," a group of Christian activists is in the beginning stages of an effort to have one state secede from the United States to become its own sovereign nation.
"Our Christian republic has declined into a pagan democracy," says Cory Burnell, president of ChristianExodus.org, a non-profit corporation based in Tyler, Texas. "There are some issues people just can't take anymore, and [same-sex marriage] might finally wake up the complacent Christians."
Burnell is leading the charge for a peaceful secession of one state from the union, and after originally considering Alabama, Mississippi and South Carolina due to their relatively small populations, coastal access, and the Christian nature of the electorate, Burnell says South Carolina has been selected as the target location.
More
Site: WorldNetDaily


TESTING THE FAITH
Fed-up Christian families moving toward 'secession'
Group attracts over 700 members in past year as citizens begin transplanting to S. Carolina

________________________________________
Posted: July 3, 2005
1:00 a.m. Eastern
By Joe Kovacs
© 2005 WorldNetDaily.com
A year after suggesting possible secession from the United States, a group of Christians fed up with American laws they believe are at odds with the Bible is beginning to move to its target state of South Carolina.
ChristianExodus.org has attracted more than 700 members from across America since WND broke the news of its inception last May, and already a half-dozen families have picked up and transplanted to the Palmetto State.
"A year ago, no one had moved. It was just a project on the board," said Cory Burnell, a financial adviser who is president of ChristianExodus. "Now, it's actually happening. Whether it's a couple of years or 20 years, we're gonna get it done."
More


Site: ChristianExodus
ChristianExodus.org is moving thousands of Christians to South Carolina to reestablish constitutionally limited government founded upon Christian principles. This includes the return to South Carolina of all "powers not delegated to the United States by the Constitution, nor prohibited by it to the States." 1 It is evident that the U.S. Constitution has been abandoned under our current federal system, and the efforts of Christian activism to restore our Godly republic have proven futile over the past three decades. The time has come for Christian Constitutionalists to protect our American principles in a State like South Carolina by interposing the State's sovereign authority retained under the 10th Amendment of the U.S. Constitution.
THE PROBLEM
Christians have actively tried to return the United States to their moral foundations for more than 30 years. We now have a professing Christian president, a Republican Congress and a Republican Supreme Court. Yet consider this:
• Abortion continues against the wishes of many States
• Sodomite and lesbian "marriage" is now legal in Massachusetts (and coming soon to a neighborhood near you)
• Children who pray in public schools are subject to prosecution 1
• Our schools continue to teach the discredited theory of Darwinian evolution
• The Bible is still not welcome in schools except under unconstitutional FEDERAL guidelines
• The 10 Commandments remain banned from public display
• Sodomy is now legal AND celebrated as "diversity" rather than condemned as perversion
• Preaching Christianity will soon be outlawed as "hate speech" 1 2 3
• Fathers are denied equal rights under law in cases of child custody
• Our right to keep and bear arms continues to be INFRINGED
• Private homes are now subject to arbitrary government seizure
Attempts at reform have proven futile. Future elections will not stop the above atrocities, but rather will lead us down an even more deadly path because both national parties routinely disobey the U.S. Constitution.
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July 4, 1776-2005

The Declaration of Independence of the Thirteen Colonies
In CONGRESS, July 4, 1776

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us, in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

The signers of the Declaration represented the new states as follows:
New Hampshire

Josiah Bartlett, William Whipple, Matthew Thornton
Massachusetts

John Hancock, Samual Adams, John Adams, Robert Treat Paine, Elbridge Gerry
Rhode Island

Stephen Hopkins, William Ellery
Connecticut

Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott
New York

William Floyd, Philip Livingston, Francis Lewis, Lewis Morris
New Jersey

Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark
Pennsylvania

Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross
Delaware

Caesar Rodney, George Read, Thomas McKean
Maryland

Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton
Virginia

George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton
North Carolina

William Hooper, Joseph Hewes, John Penn
South Carolina

Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton
Georgia

Button Gwinnett, Lyman Hall, George Walton